Doherty on Empirical Toolkits and the Future of ELS

Josh Wright —  18 November 2008

UCLA’s Joe Doherty is guest blogging over at ELS Blog and is first post is a must read for folks engaged in empirical legal studies generally which strikes at the heart of defining our enterprise. Doherty points out the tendency toward the adoption of narrow toolkits within fields (methodological differences between political scientists and economists come to mind) and how this plays out for ELS as a meta-field designed to embrace a diverse set of social scientific approaches to law:

Which leads me to wonder about the utility of having a set of metrics and tools unique to ELS. An ELS toolbox would be the dialect of empirical legal studies, aiding the transmission of knowledge within our group while setting boundaries around what constitutes our field. Is this likely to happen? Probably not. We are not isolated enough. We don’t have graduate students in the traditional sense, and our mandate is to produce new professionals not clones of ourselves. So we are in an odd position, building a field that is defined by the use of social science research methods, but without a set of methods to call our own and no prospect of creating one. This might be an advantage, as it gives us the liberty to borrow from everywhere, but it leaves open the question: what defines ELS? Is it what we study, how we study it or who does the studying?

These issues about the future of ELS and its definition, with some important distinctions and differences, are highly related to those I began thinking about in my earlier series on the future of law and economics (blog posts available here) — and especially empirical law and economics in law schools. I argued that the mathematical formalization of economic science has led to a brand of L&E and L&E scholars less interested in “retailing” their work to legal academics and policy audiences and suggested that this was bad news for the discipline. I also predicted that these trends would drive some modern L&E out of law schools (in particular, the theoretical modeling) with the empirical work finding a home in large part because of the success of the ELS movement. Perhaps because ELS carries a diversified portfolio in terms of its methodological toolkit, it is likely to avoid this particular fate. I’m not sure. Of course, Doherty points out the relevant tradeoff: a discipline that is free to borrow from everywhere has a difficult time defining itself and attracting future scholars. Still, I believe the lessons from the successful evolution of law and economics as an intellectual force in the legal academy, and its limits, are worth learning for those who are hopeful for the future of ELS.